RICHARD DELGADO VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2103-16T2
RICHARD DELGADO,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR, AND
SUBURBAN PROPANE, INC.,
Respondents.
____________________________
Argued May 10, 2018 – Decided June 20, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from the Board of Review, Department
of Labor, Docket No. 051,656.
Sarah Hymowitz argued the cause for appellant
(Legal Services of New Jersey, attorneys;
Sarah Hymowitz and Melville D. Miller, on the
briefs).
Rimma Razhba, Deputy Attorney General, argued
the cause for respondent Board of Review
(Gurbir S. Grewal, Attorney General, attorney;
Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Rimma Razhba, on the
brief).
PER CURIAM
Richard Delgado appeals from a final agency decision of the
Board of Review (Board), which denied his request to "reopen" the
Board's earlier decision deeming him ineligible for unemployment
benefits. The Board found that Delgado voluntarily left his job
for reasons not attributable to the work after a meeting at which
he received an unsatisfactory performance appraisal. The Board
also directed that Delgado refund $13,416 in benefits that were
paid to him. For the reasons that follow, we reverse the Board's
decision and remand the matter for consideration anew.
The facts derived from the record are summarized as follows.
Delgado was employed by respondent, Suburban Propane, Inc.
(Suburban), as a credit analyst from February 25, 2013 until
February 24, 2015. His employment terminated when Delgado left a
meeting with his supervisor and the company's vice president to
discuss his job performance.
After Delgado stopped working at Suburban, he applied for
unemployment benefits. In response, a Deputy Director of
respondent, the Department of Labor and Workforce Development
(Department), issued a Notice of Determination, advising Delgado
he was disqualified from receiving benefits. According to the
notice, Delgado quit his job without good cause attributable to
the work when he "left [his] job voluntarily because [he] felt
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[his] supervisor's criticism of [his] job performance was unduly
severe."
Delgado filed an appeal from the Deputy Director's
determination with the Appeal Tribunal in which he claimed he was
terminated by Suburban and had not quit his job. In response to
Delgado's appeal, the Appeal Tribunal conducted a telephonic
hearing on April 30, 2015, during which Delgado and his supervisor
from Suburban testified. The testimony adduced at the hearing
focused on each party's version of what occurred at the meeting,
Delgado's return to the office the following day, and whether he
was fired or quit on either day. On May 1, 2015, the Appeal
Tribunal issued a written decision reversing the Deputy Director's
determination, after it found Delgado had been discharged and was
not ineligible for benefits under N.J.S.A. 43:21-5(a) because the
evidence did not support a finding of misconduct under N.J.S.A.
43:21-5(b).
Suburban appealed on May 21, 2015 and, on May 27, 2015, the
Board mailed a Notification of Appeal to Delgado. The notice
advised Delgado that the Board had received "correspondence" from
Suburban that was "under consideration by the Board," without
providing a copy of Suburban's submission to Delgado. The
submission consisted of an uncertified statement from an
undisclosed author setting forth facts surrounding the meeting and
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subsequent events that led to Delgado leaving Suburban's
employment. It raised new points about Delgado's behavior during
his employment and the meeting, as well as additional behavior
that allegedly occurred as he left the office. For example, it
identified various company policies that Delgado allegedly
violated that were never discussed during the hearing before the
Appeal Tribunal. It also stated Delgado "slap[ped] high five with
another co-worker on his way out" the door after the meeting.
Despite not providing Delgado with a copy of Suburban's
submission, the notice stated that he had seven days to "submit
any written arguments you wish the Board to consider [.]" Delgado
responded in writing on June 1, 2015 and June 3, 2015, explaining
his version of the facts, and stating that he was shocked that
Suburban could appeal as he had been told by an agency
representative that the Appeal Tribunal's decision was final.
After considering the parties' submissions, the Board issued
its written decision on December 22, 2015, rejecting the Appeal
Tribunal's decision. The Board found that the Appeal Tribunal's
findings were inaccurate and that it "ignored" other facts. The
Board made different fact-findings and concluded that Delgado had
voluntarily left his job. It relied upon evidence that Suburban
never told Delgado that he was discharged, that "he handed in his
keys and removed his personal effects," and "his departure was
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punctuated by an obscenity." According to the Board, Suburban's
"dissatisfaction with [Delgado's] work [did] not give the claimant
good cause to quit." Two days later, the Department issued a
demand for a refund of benefits paid to Delgado in the amount of
$13,416.00.
In January 2016, Delgado filed an appeal from the Board's
final decision with our court. Shortly thereafter, Delgado
obtained counsel who immediately contacted the Board to request a
copy of Suburban's submission to the Board that the Board did not
include when it notified Delgado of the company's appeal. Counsel
found the Board's omission to be unfair to Delgado and all similar
claimants because "[w]ithout seeing [Suburban's] letter of appeal,
any attempt at a response is nothing more than a shot in the dark.
A party simply cannot defend their claim without knowing what the
[employer] argued."
Counsel's letter prompted an exchange of emails in which the
Board advised that "[w]e usually do send out a copy of the appeal
letter with the acknowledgment letter," and agreed to do so at
counsel's request. When counsel asked for a copy, the Board's
representative stated Delgado could "ask the Board to reopen the
case." Despite her repeated requests for a copy of the submission,
the Board did not provide a copy until February 25, 2016.
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On March 2, 2016, Delgado's counsel submitted a request with
the Board to reopen and reconsider Delgado's claim. In a
supporting brief, counsel argued that the Board, in reaching its
final decision, should not have considered the unsigned and
anonymous statement submitted with Suburban's appeal. Counsel
also pointed out that Suburban's submission did not argue that the
Appeal Tribunal committed any errors in its fact-findings or
conclusions of law based on the evidence presented at the hearing.
While Delgado's request to reopen the matter was pending, he
withdrew his appeal filed with our court. In his letter to the
court, Delgado stated that the Board had "agreed to reopen [his]
case."
By the middle of September 2016, the Board had not acted upon
Delgado's request. As a result, counsel began to make inquiry and
was advised that the matter had been closed because Delgado filed
an appeal with our court and, contrary to counsel's claim, the
Board never agreed to reopen or reconsider his claim. However,
after counsel supplied copies of her earlier emails with the
Board's representative who stated that Delgado could ask to reopen
his claim, and her client's withdrawal of his appeal with our
court, the Board issued a letter to counsel on December 6, 2016,
advising that it denied Delgado's "request for a reopening of the
Order of Dismissal[.]" Counsel requested clarification because
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there was never an order of dismissal entered by the Board. A few
days later, the Board issued a "corrected" letter stating it had
denied Delgado's request to reopen the Board's "decision." This
appeal followed.
On appeal, Delgado contends that the Board violated his due
process rights, its decision was not supported by the evidence,
and to the extent he "left work voluntarily," the Board should
have applied the "unemployment doctrine of leaving 'in a huff.'"
We find merit to these arguments.
Our review of decisions by administrative agencies is
limited, with petitioners carrying a substantial burden of
persuasion. In re Stallworth, 208 N.J. 182, 194 (2011); Brady v.
Bd. of Review, 152 N.J. 197, 218 (1997). An agency's determination
must be sustained "unless there is a clear showing that it is
arbitrary, capricious, or unreasonable, or that it lacks fair
support in the record." Russo v. Bd. of Trs., Police & Firemen's
Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192
N.J. 19, 27-28 (2007)). "[I]f substantial evidence supports the
agency's decision, 'a court may not substitute its own judgment
for the agency's even though the court might have reached a
different result[.]'" In re Carter, 191 N.J. 474, 483 (2007)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992)). The burden of proof rests with the employee to
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establish a right to collect unemployment benefits. Brady, 152
N.J. at 218.
Applying our deferential standard of review, we are
constrained to vacate the Board's determination because it is
apparent that Delgado's due process rights were violated when the
Board considered new evidence improperly submitted as part of
Suburban's appeal without giving Delgado an opportunity to
challenge the submission.
At the outset, we acknowledge that the Board is authorized
to prescribe rules concerning "[t]he manner in which disputed
benefit claims, and appeals from determinations with respect
to . . . claims for benefits . . . shall be presented . . . ."
N.J.S.A. 43:21-6(f). N.J.A.C. 1:12-14.3 governs appeal hearings
before the Board. It states:
(a) All appeals to the Board of Review may
be heard upon the evidence in the record made
before the appeal tribunal, or the Board of
Review may direct the taking of additional
evidence before it.
(b) In the hearing of an appeal on the record,
the Board of Review may limit the parties to
oral argument or the filing of written
argument, or both. If, in the discretion of
the Board of Review, additional evidence is
necessary to enable it to determine the
appeal, the parties shall be notified by the
Board of Review of the time and place such
evidence will be taken. Any party to any
proceeding in which testimony is taken may
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present such evidence as may be pertinent to
the issue.
(c) The Board of Review, in its discretion,
may remand any claim or any issue involved in
a claim to an appeal tribunal for the taking
of such additional evidence as the Board of
Review may deem necessary. Such testimony
shall be taken by the appeal tribunal in the
manner prescribed for the conduct of hearings
on appeals before appeal tribunals. Upon the
completion of the taking of evidence by an
appeal tribunal pursuant to the direction of
the Board of Review, the claim or the issue
involved in such claim shall be returned to
the Board of Review for its decision upon the
entire record, including the evidence before
the appeal tribunal and such additional
evidence and such oral argument as the Board
of Review may permit before it.
(d) The Board of Review, in its discretion,
may remand any claim or any issue involved in
a claim to an appeal tribunal for the taking
of additional evidence and a decision or may
remand for a new decision only.
[Emphasis added.]
The Board's authority is not without limits. Proceedings
before the Board must insure that litigants are afforded due
process. "[S]tate statutes providing for the payment of
unemployment compensation benefits create in the claimants for
those benefits property interests protected by due process."
Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992) (quoting
Wilkinson v. Abrams, 627 F.2d 650, 664 (3d Cir. 1980)). "[A]ny
proceeding which is to be accorded finality [requires] notice
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reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections." Id. at 583
(alterations in original) (quoting Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950)).
"[D]ue process requires that a party in a judicial hearing
receive 'notice defining the issues and an adequate opportunity
to prepare and respond.'" H.E.S. v. J.C.S., 175 N.J. 309, 321
(2003). "[T]here can be no adequate preparation where the notice
does not reasonably apprise the party of the charges, or where the
issues litigated at the hearing differ substantially from those
outlined in the notice." H.E.S., 175 N.J. at 322 (alteration in
original) (quoting Nicoletta v. N. Jersey Dist. Water Supply
Comm'n, 77 N.J. 145, 162 (1978)). In the context of a possible
denial of unemployment benefits, a claimant is entitled to adequate
notice and an opportunity to be heard. Garzon v. Bd. of Review,
Dep't of Labor, 370 N.J. Super. 1, 5 (App. Div. 2004). "[T]he
citizen facing a loss at the hands of the State must be given a
real chance to present his or her side of the case before a
government decision becomes final." Rivera, 127 N.J. at 583.
Here, the record reflects that Suburban submitted new facts
to the Board that they had not introduced before the Appeal
Tribunal without apprising Delgado of the submission's contents.
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Contrary to the Board's contention on appeal, the fact that
Delgado's attorney had an opportunity to address the submission
in her brief seeking to reopen the matter did not remedy the
problem because Delgado was not "afforded notice and opportunity
to be heard and to present evidence relating to such new matters."
Charles Headwear, Inc. v. Bd. of Review, 11 N.J. Super. 321, 329
(App. Div. 1951) (emphasis added). The proper remedy would have
been for the Board to either reject Suburban's submission as not
having been requested by the Board, N.J.A.C. 1:12-14.3, or for the
Board to have reopened Delgado's claim, and allowed him an
opportunity to be heard. See Rivera, 127 N.J. at 584. Due process
requires nothing less.
In its consideration of Delgado's claim anew, the Board should
consider all of the evidence properly presented to it or the Appeal
Tribunal, as well as both parties' legal arguments based on the
evidence, including whether the "leaving in a huff" doctrine
applies to this case. See Savastano v. Bd. of Review, 99 N.J.
Super. 397, 400 (App. Div. 1968), ("Employees frequently leave
work temporarily for some fleeting physical or mental irritation,
or 'in a huff' occasioned by one or more of the frustrations
attending commercial life, without intending to quit.").
Because our decision compels the reopening of Delgado's claim
for consideration anew, we need not address his remaining argument.
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Reversed and remanded. We do not retain jurisdiction.
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